China increases family planning enforcement: the meaning for asylum

Immigration law is rather unusual, in that foreign countries' actions or laws can have an impact on U.S. proceedings. This is especially true for someone seeking asylum, as asylum is usually based on conditions in the asylum-seeker's home country and/or actions taken by that country's government.

One prime example is China, whose government has undertaken strict measures to control future population, the core of which is the "one child" rule. For parents, this can sometimes mean forced abortion or sterilization. A 2007 report by the U.S. State Department, known as the 2007 Country Profile of Asylum Claims and Country Conditions (Country Profile), is often cited by immigration judges and the Board of Immigration Appeals (BIA) in determining what conditions someone might face if forcibly returned to their home country.

As it relates to the one-child rule, the Country Profile states that there is no policy of the Chinese government requiring forced sterilization or abortion, and that policy prohibits physical force in compelling any such practice.

New evidence has been submitted, however, that seems to show that not to be the case. The issue first came to the federal courts' attention in the spring of 2013, when a petitioner from China had asked the Executive Office for Immigration Review (EOIR) to reopen an earlier petition for asylum. His first petition, in 2003, was on the grounds that he had faced persecution for running a bookstore which contained books related to Falun Gong, a prohibited religious movement. He was ordered to be removed, but remained in the country. In 2011, after he had married and had two children in the United States, he requested that his case be reopened.

As part of the reopening request, he submitted some 900 pages of documentation in support of his claim that government policy in China had changed since 2007, when the Country Profile was published. These included a critique of the Country Profile, two reports from the Congressional-Executive Commission on China (from 2009 and 2010), and dozens of internal government communications directing that forced sterilization and abortions be used. His reopening request was denied by both the immigration judge and the BIA. The Seventh Circuit Court of Appeals reversed, however, and after criticizing the BIA's failure to evaluate the evidence, ordered that the case be reopened and that the EOIR evaluate his claim for asylum.

The next month, the court addressed the case of another Chinese individual, this time a woman who feared sterilization if she were forced to return to China with her two children. The court cited the Congressional-Executive reports, as well as reports from Canadian immigration officials and news articles, and again criticized the BIA for not addressing this additional evidence, and for over-reliance on the Country Report.

Later in 2013, the court addressed the issue once again. A woman stated that she had already suffered a forced abortion in China prior to fleeing to the United States (although not because of the one-child rule), and that she would face similar treatment since she had given birth to two children during her time in the United States. The court cited the two cases discussed above and the evidence supplied for them, and ordered the EOIR to reconsider the woman's application in light of that evidence.

As the court said in the most recent case, each case must be given "individualized scrutiny." Everyone's case may hinge on different facts and circumstances, so if you are seeking asylum, it is important to contact an attorney as soon as possible.